In the case of Todd v Strain & Otrs, the Employment Appeal Tribunal concluded that relatively trivial administrative changes to employees’ pay arrangements constituted “measures” for the purpose of Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).
This was because the changes were not an inevitable consequence of the transfer. In addition, the EAT confirmed that there was no requirement for “measures” to have a negative impact because “part of the purpose of the duty to consult must surely be to enable transitional arrangements…to be explained to employees and for them to be reassured”.
This is an important decision. Under TUPE, the employer of the affected employees is obliged to consult with appropriate representatives about any measures it intends to take. To avoid any suggestion of breach of the consultation obligation, employers will effectively need to consult about any changes they intend to make, however minor.